As courts censure civil detention practices, is it time for professionals to speak up?

Guest commentary by David S. Prescott, LICSW*

David S. Prescott. Photo by J. Lloyd.

Last week, a federal judge ruled that Missouri's civil commitment program is unconstitutional, the second such court decision in three months. For readers unfamiliar with the US civil commitment laws (AKA “SVP” laws), the short version is that 20 states and the federal government have laws that allow states to indefinitely confine sex offenders who are assessed as having a mental diagnosis that predisposes them to commit future sexual violence. There are controversies at every possible turn in these laws, their processes, and subsequent programs, and the US Supreme Court decisions allowing civil commitment have passed by as little as one vote. Because the author was an expert witness in the Missouri case, this essay looks more at the big-picture issues rather than at that specific case. What seems clear is that there is an evolving consensus in the courts that civil commitment as it is being practiced in many places is unconstitutional and that governments and programs must work together closely to rein in widespread abuses.

As in the Minnesota case decided this June, the Missouri case involved a treatment program in operation for many years (roughly 15 in Missouri’s case and 20 in Minnesota’s) from which few have been released and no one has ever been fully discharged. On one hand it is clear that some people who are civilly committed are truly dangerous; I have worked with men who openly vow to re-offend. On the other hand, no bona fide form of treatment takes a minimum of 15 years to complete. Add to this a political climate that is at best unconducive to genuine rehabilitation, and the die for these court decisions was cast long, long ago.

Prison researcher Grant Duwe

For all of our profession's advances in assessment and treatment, we seem to be producing no improved outcomes whatsoever in the civil commitment arena. A study that has not garnered the amount of discussion that it deserves is Grant Duwe’s research finding that only 28% of a sample of civilly committed offenders would likely have re-offended again in their lifetimes, raising questions as to whether states have cast their nets too wide. In a nation in which “Blackstone’s Formulation” -- "It is better that ten guilty persons escape than that one innocent suffer" -- is taught in schools as a fundamental principle of justice, the practice of holding thousands of people indefinitely beyond the expiration of their criminal sentences ought to give anyone pause. In fact, the principle behind Blackstone’s Formulation goes back to antiquity. For example, in the Bible, Genesis 18:23-24 quotes Abraham as asking: “Will you sweep away the righteous with the wicked? What if there are fifty righteous people in the city? Will you really sweep it away and not spare the place for the sake of the fifty righteous people in it?” What are the implications for civil commitment?

Closer to street level, two cases among many made prominent headlines in Minnesota last year. The first was that of a young man who had sexually abused others at an early age. From a media account:

The four court-appointed experts argued that T’s early sexual offenses as a juvenile were influenced by his own sexual victimization, and that his behavior was likely exacerbated by his attention deficit hyperactivity disorder (ADHD) and untreated trauma. The experts also noted that most juveniles who act out sexually do not continue to offend as adults. “There is little evidence to suggest that T is a dangerous sexual offender who poses a significant risk to public safety,” the experts wrote.

Another case involved the only woman civilly committed as a sex offender in that state. From a different news report:

B’s case has proven to be even more vexing for the state….[I]t’s clear officials had little idea what to do or how to treat her.… She suffered a traumatic upbringing: abused by her father, brother and two of her uncles starting as early as 5 years old and continuing through young adulthood. She had a child at 14, and as an adult, sexually abused two boys. [One] of the court-appointed experts … characterized B’s offenses as “reactive” to her trauma as a child. As an adult, B is “flirtatious” and “forward” and easily stimulated in discussions of sexual activities. All of which means that treating her in an all-male program, with group therapy sessions, might have actually made things worse.

Despite expert consensus that continued civil confinement was not likely to be helpful in either case, neither T nor B were released. This represents a trend. Similar cases (such as this other juvenile-only offender or this 65-year-old man who reports being shuffled among no less than 24 therapists in more than two decades of commitment) have been reported in the media, and yet the status quo continues.

Missouri's Sex Offender Rehabilitation and Treatment Services (SORTS). 
Photo credit: Jesse Bogan, St. Louis Post-Dispatch

Clearly, these cases involve people who are difficult to treat. For a sense of scale, though, the woman described above was civilly committed during Bill Clinton’s first year in office, 22 years ago; others have been committed for even longer. One commentator described the lack of outcry as having the same emotional valence as fishermen noting that they sometimes catch dolphins in their tuna nets. At what point is remaining silent about the judicial findings, and the many task force reports and outside evaluations they rest on, no longer acceptable?

Sadly, the people working at the front lines are often directed by policy and supervisors not to openly discuss these issues. In my experience, some people care more deeply than others about balancing the rights and welfare of the community with the principle of beneficence toward clients in treatment. There is no question that there are good people at the front lines trying to do the right thing and wrestling with deeply personal questions about the way forward. Still, given that two exercises of civil commitment statutes have been deemed unconstitutional -- and in the eyes of many that is another way of saying fundamentally un-American -- questions emerge for all practitioners:

At what point do professionals in these settings openly acknowledge to them/ourselves that we are participating in systems that are openly unconstitutional and therefore unlawful according to the standards of much of the Western world? Even beyond American law, consider the case of Shawn Sullivan, who fled the US and was on Interpol’s most-wanted list. One of the UK’s highest courts denied a U.S. extradition request on the basis that Minnesota's program to commit sex offenders indefinitely to treatment violates European human rights law. From the article:

The case of Shawn Sullivan garnered international headlines

Lord Justice Alan Moses said returning Sullivan for trial with the possibility of later being placed in the sex offender system would be a "flagrant denial of his rights" under European law.

With that in mind, professionals might also want to ask at what point we are violating basic human rights when we render "treatment" that no one can ever complete.

Meanwhile, even in states such as Wisconsin, New York and Texas, where some committed sex offenders have successfully completed treatment and been released into the community, the constitutionality of civil commitment is threatened by broad residency restrictions and policies that severely restrict where these residents can live once discharged.

As a profession, we have the research, the tools, and the templates to provide prompt and adequate treatment and to reduce the harm of sexual abuse, and yet we find ourselves in political climates where we cannot use them. At what point do we as individual professionals, or as professional organizations, take a stand against practices that are clearly not working to anyone’s long-term benefit? One need only look at the recent scandal of the American Psychological Association and its involvement with torture to see how collective inaction can ultimately bring disgrace to a profession.

Personally, my belief is that we all need to talk about these issues much more than we do. Legal action and journal articles are one matter, public dialog is something else. Critical self-examination takes courage. Perhaps it starts with all of us when we say to ourselves: All sexual abuse is unacceptable, but I will not violate the rights of others in the name of reducing harm. It is time to take a stand for the rights of all human beings.

*David Prescott is Director of Professional Development for a youth services organization in New England, and is a widely published author and lecturer on sex offender treatment, motivational interviewing, adolescent offenders and related topics. He was an expert witness in the Missouri class action case decided Sept. 11 by U.S. District Court Judge Audrey Fleissig, Van Orden v. Schafer (the full text of which is available HERE). More information is available at his website. An earlier version of this essay appeared at the blogspot of Sexual Abuse: A Journal of Research and Treatment.   

Adversarial allegiance: Frontier of forensic psychology research

A colleague recently commented on how favorably impressed he was about the open-mindedness of two other forensic examiners, who had had the courage to change their opinions in the face of new evidence. The two had initially recommended that a man be civilly committed as a sexually violent predator, but changed their minds three years later .

My colleague's admiration was short-lived. It evaporated when he realized that the experts’ change of heart had come only after they switched teams: Initially retained by the government, they were now in the employ of the defense.

"Adversarial allegiance" is the name of this well-known phenomenon in which some experts' opinions tend to drift toward the party retaining their services. This bias is insidious because it operates largely outside of conscious awareness, and can affect even ostensibly objective procedures such as the scoring and interpretation of standardized psychological tests.

Partisan bias is nothing new to legal observers, but formal research on its workings is in its infancy. Now, the researchers spearheading the exploration of this intriguing topic have put together a summary review of the empirical evidence they have developed over the course of the past decade. The review, by Daniel Murrie of the Institute of Law, Psychiatry and Public Policy at the University of Virginia and Marcus Boccaccini of Sam Houston State University, is forthcoming in the Annual Review of Law and Social Science.

Forensic psychologists’ growing reliance on structured assessment instruments gave Murrie and Boccaccini a way to systematically explore partisan bias. Because many forensic assessment tools boast excellent interrater reliability in the laboratory, the team could quantify the degradation of fidelity that occurs in real-world settings. And when scoring trends correlate systematically with which side the evaluator is testifying for, adversarial allegiance is a plausible culprit.

Daniel Murrie

Such bias has been especially pronounced with the Psychopathy Checklist-Revised, which is increasingly deployed as a weapon by prosecutors in cases involving future risk, such as capital murder sentencing hearings, juvenile transfer to adult courts, and sexually violent predator commitment trials. In a series of ground-breaking experiments, the Murrie-Boccaccini team found that scores on the PCL-R vary hugely and systematically based on whether an expert is retained by the prosecution or the defense, with the differences often exceeding what is statistically plausible based on chance.

Systematic bias was also found in the scoring of two measures designed to predict future sexual offending, the popular Static-99 and the now-defunct Minnesota Sex Offender Screening Tool Revised (MnSOST-R).

One shortcoming of the team’s initial observational research was that it couldn’t eliminate the possibility that savvy attorneys preselected who were predisposed toward one side or the other. To test this possibility, two years ago the team designed a devious experimental study in which they recruited forensic psychologists and psychiatrists and randomly assigned them to either a prosecution or defense legal unit. To increase validity, the experts were even paid $400 a day for their services.

Marcus Boccaccini

The findings provided proof-positive of the strength of the adversarial allegiance effect. Forensic experts assigned to the bogus prosecution unit gave higher scores on both the PCL-R and the Static-99R than did those assigned to the defense. The pattern was especially pronounced on the PCL-R, due to the subjectivity of many of its items. ("Glibness" and "superficiality," for example, cannot be objectively measured.)

The research brought further bad tidings. Even when experts assign the same score on the relatively simple Static-99R instrument, they often present these scores in such a way as to exaggerate or downplay risk, depending on which side they are on. Specifically, prosecution-retained experts are far more likely to endorse use of "high-risk" norms that significantly elevate risk.

Several somewhat complimentary theories have been advanced to explain why adversarial allegiance occurs. Prominent forensic psychologist Stanley Brodsky has attributed it to the social psychological process of in-group allegiance. Forensic psychologists Tess Neal and Tom Grisso have favored a more cognitive explanation, positing heuristic biases such as the human tendency to favor confirmatory over disconfirmatory information. More cynically, others have attributed partisan bias to conscious machinations in the service of earning more money. Murrie and Boccaccini remain agnostic, saying that all of these factors could play a role, depending upon the evaluator and the situation.   

One glimmer of hope is that the allegiance effect is not universal. The research team found that only some of the forensic experts they studied are swayed by which side retains them. Hopefully, the burgeoning interest in adversarial allegiance will lead to future research exploring not only the individual and situational factors that trigger bias, but also what keeps some experts from shading their opinions toward the retaining party.

Even better would be if the courts took an active interest in this problem of bias. Some Australian courts, for example, have introduced a method called "hot tubs" in which experts for all of the sides must come together and hash out their differences outside of court. 

In the meantime, watch out if someone tries to recruit you at $400 a day to come and work for a newly formed legal unit. It might be another ruse, designed to see how you hold up to adversarial pressure.

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The article is: Adversarial Allegiance among Expert Witnesses, forthcoming from The Annual Review of Law and Social Science. To request it from the first author, click HERE. 

Related blog posts:

• Remarkable experiment proves pull of adversarial allegiance (March 5 2013)  
• Psychopathy: A Rorschach test for psychologists? (March 25, 2011) 
• "Hot tubbing": Counterbalance for expert partisanship? (Aug. 11, 2008)